Punjab-Haryana High Court
Manager vs Dhanpati And Another on 10 December, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 23545 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 23545 of 2013
Date of Decision: 10.12.2013
Manager, State Warehousing Corporation, Cheeka, District Kaithal
and others
.....Petitioners.
Versus
Dhanpati and another
.....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Ashwani Talwar, Advocate
for the petitioner.
***
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
***
RAMESHWAR SINGH MALIK J. (Oral)
The present writ petition, at the hands of the management, is directed against the impugned award dated 6.5.2013 (Annexure P-1) passed by the learned Labour Court, directing reinstatement of the respondent-workman with continuity of service and 50% back wages.
The facts are hardly in dispute. The respondent-workman was engaged as part-time Sweeper in the year 2007. Her services came to be terminated on 1.11.2010 and that too, without complying with provisions contained in Section 25-F of the Industrial Disputes Act, 1947 ('ID Act' for short). Industrial dispute was raised. Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document Civil Writ Petition No. 23545 of 2013 2 Conciliation proceedings failed and thereafter, appropriate government referred the industrial dispute to the learned Labour Court for its adjudication. Both the parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner-management has not only violated the mandatory provisions of Section 25-F of the ID Act, but provisions of Section 25-H of the ID Act were also violated. Consequently, reinstatement was directed with continuity of service and 50% back wages. Hence this writ petition.
Learned counsel for the petitioners submits that since the respondent-workman has not rendered a long service, the learned Labour Court ought to have granted a reasonable amount of compensation for service rendered by her, which was about three years. He further submits that the respondent-workman was not appointed after following due procedure and her appointment itself was illegal. He next contended that the respondent-workman was not a workman as such, keeping in view the nature of job. He further submits that the learned Labour Court failed to appreciate this factual aspect of the matter while passing the impugned award. To substantiate his arguments, learned counsel for the petitioners relies upon the judgments of the Hon'ble Supreme Court in Jagbir Singh Vs. Haryana State Agricultural Marketing Board, 2009 (15) SCC 327, Incharge Officer and another Vs. Shankar Shetty 2010 (9) SCC 126 and Assistant Engineer Rajasthan Development Kumar Amit Corporation Vs. Gitam Singh, 2013 (5) SCC 136. Finally, he prays 2013.12.31 13:35 I attest to the accuracy and integrity of this document Civil Writ Petition No. 23545 of 2013 3 for setting aside the impugned award by allowing the present writ petition.
Having heard the learned counsel for the petitioners at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that the present one is not a fit case warranting interference at the hands of this Court, while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than, which are being recorded hereinafter.
It has gone undisputed on record that the respondent- workman was appointed in the year 2007. Her services came to be terminated on 1.11.2010. It is also an admitted fact on record that provisions of Section 25-F of ID Act were not complied with by the petitioner-management. Although a warning came to be issued to the respondent-workman vide communication dated 26.10.2010 about her alleged unsatisfactory work, yet admittedly no domestic enquiry was conducted. It is also a matter of record that after termination of services of the respondent-workman, another person was engaged in her place without any notice to the respondent- workman. Thus, provisions of Section 25-H also stood violated. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law, while passing the impugned award, directing reinstatement of the respondent-workman with continuity of service and 50% back wages.
Kumar Amit
So far as the judgments relied upon by the learned 2013.12.31 13:35 I attest to the accuracy and integrity of this document Civil Writ Petition No. 23545 of 2013 4 counsel for the petitioners are concerned, there is no doubt about the law laid down therein. However, after going through the judgments relied upon by the learned counsel for the petitioners, this Court is of the view that ratio of the judgments goes against the petitioner itself. The relevant observations made by the Hon'ble Supreme Court in Gitam Singh's case (supra), which can be gainfully followed in the present case, are as under;-
"From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement.
Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily- rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document Civil Writ Petition No. 23545 of 2013 5 be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief."
A bare reading of the above said observations made by the Hon'ble Supreme Court would show that once the termination has been found to be illegal and the violation of mandatory provisions of law stood established on record, normal rule is that of reinstatement with continuity of service and back wages. However, this Court hasten to add that this normal rule of reinstatement is not without exception. Each case would depend on its own peculiar facts. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in the judgments referred to hereinabove, it is unhesitatingly held that petitioner-management has since glaringly violated the provisions of law contained in Section 25-F as well as Section 25-H of the ID Act, the learned Labour Court rightly passed the award in favour of the respondent-workman.
So far as the contention raised by the learned counsel for the petitioner that initial appointment of the respondent-workman was not made as per rules, was concerned, the same has been found to Kumar Amit be without any merit. The reason is obvious that neither any action 2013.12.31 13:35 I attest to the accuracy and integrity of this document Civil Writ Petition No. 23545 of 2013 6 has been initiated against the erring officer/official, who allegedly appointed the respondent-workman against the procedure, nor any evidence was led by the petitioner-management before the learned Labour Court in this regard. Under these circumstances, it is held that the petitioner-management cannot be allowed to take benefit out of its own wrong and the respondent-workman cannot be made to suffer for no fault on her part.
During the course of hearing, learned counsel for the petitioner failed to point out any jurisdictional error or patent illegality apparent on the record of the case. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned Labour Court. No prejudice has been shown to have been caused to the petitioner by passing of the impugned award.
No other argument was raised Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 10.12.2013 AK Sharma Kumar Amit 2013.12.31 13:35 I attest to the accuracy and integrity of this document